David Lee Scott v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-922

NOT DESIGNATED FOR PUBLICATION

DAVID LEE SCOTT

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered April 7, 2005

PRO SE PETITION FOR WRIT OF CERTIORARI AND MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF FAULKNER COUNTY, CR 2003-433, HON. MICHAEL A, MAGGIO, JUDGE]

PETITION AND MOTION GRANTED

PER CURIAM

In 2003, David Lee Scott was charged by felony information in the Circuit Court of Faulkner County with aggravated robbery. The public defender was appointed to represent him but filed a motion to be relieved after Scott posted a $40, 000 bond. The motion was granted on September 16, 2003.

On May 20, 2004, judgment was entered reflecting that Scott had been found guilty in a trial to the bench of aggravated robbery. A sentence of 240 months' imprisonment was imposed. Scott represented himself at trial with a public defender as "co-counsel."1

On June 7, 2004, Scott filed a pro se motion for new trial. On June 15, 2004, a letter from Scott to the trial judge containing a request to appeal was timely filed as a notice of appeal. There was no action on the motion for new trial, and it was deemed denied on Wednesday, July 7, 2004. Scott filed an untimely notice of appeal on August 10, 2004, from the denial of the motion for new trial.

. Proceeding pro se, appellant Scott lodged a partial record here on appeal from the judgment of conviction. Although the partial record did not contain an order declaring him indigent, the record appears to have been prepared at public expense. Appellant asks in the instant motion that counsel be appointed to represent him on the ground that he is indigent. He has appended an affidavit of indigency to the motion. The State has not filed a response taking issue with appellant's assertion that he is indigent. Accordingly, we grant the request to proceed as a pauper and declare him indigent for the purposes of an appeal of the judgment. Attorney Denita Moak is appointed to represent appellant.

A direct appeal of a conviction is a matter of right, and a criminal defendant is entitled to representation by counsel on his or her first appeal of right. Douglas v. California, 372 U.S. 353 (1963); This right applies to indigent defendants on direct appeal of a judgment of conviction. Ross v. Moffitt, 417 U.S. 600 (1974).

Appellant also asks that a writ of certiorari be issued to bring up the remainder of the record for the appeal. As the newly-appointed attorney must review the entire record for error, the petition is granted. The writ is returnable in thirty days.

Petition and motion granted.

1 The judgment of conviction bears the notation: "Defendant made a voluntary, knowing and intelligent waiver of the right to counsel: Yes; Karen Walker-Knight was appointed as co-counsel." Appellant contends in the petition for writ of certiorari filed in this court that he was forced by the trial court to represent himself because he had been able to obtain the funds to be

released on bond and was thus not eligible for appointment of counsel as an indigent, even though the funds were provided by his family and not him. If appellant indeed represented himself with an attorney serving in an advisory capacity, attorney Walker-Knight would more accurately be termed "standby" counsel. See Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999).